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Further Focus on Lead-Based Paint: EPA Tightens Dust-Lead Clearance Levels for First Time in Almost 20 Years

Last month, we shared compliance lessons to learn from the $20.75 million penalty faced by Home Depot related to renovations of pre-1978 residences. The U.S. Environmental Protection Agency (EPA) press release states that the settlement would “significantly reduce children’s exposure to lead paint hazards”. Also in December, EPA took further action designed to reduce children’s exposure to lead-based paint (LBP)—this time, in the form of a final rule reducing, for the first time in two decades, the dust-lead clearance levels (DLCL) for floors and window sills after abatement activities. This rulemaking reconciles the previously inconsistent standards applicable to abatement activities conducted under EPA regulations and those conducted under U.S. Department of Housing and Urban Development (HUD) regulations. The final rule will be effective March 8, 2021, and will impact contractors, schools, childcare facilities, property owners and lessors, lead abatement professionals, housing authorities, and others who conduct LBP activities—including their subcontractors.

EPA issued the DLCL and Dust Lead Hazard Standards (DLHS) under the Toxic Substances Control Act (TSCA) in 2001. Both apply to LBP activities conducted at target housing (i.e., most pre-1978 housing) and child-occupied facilities (i.e., pre-1978 non-residential properties where children six years of age or under spend a significant amount of time, such as childcare centers and kindergartens). While the DLHS are the standards used by inspectors and risk assessors to determine whether LBP hazards exist prior to a renovation or abatement activity, the DLCL are the standards used to evaluate the effectiveness of cleanings conducted after lead abatement activities. Following the completion of an abatement activity, surface dust is collected via dust wipe samples that are sent to a laboratory for analysis to determine the dust-lead levels in them. The post-abatement dust-lead levels are evaluated against, and must be below, the applicable DLCL.

Removing Inconsistency Between EPA and HUD Standards

This tightening of the DLCL is a continuation of EPA’s 2019 efforts aimed at reducing childhood lead exposure. The 2019 DLHS Rule, which came into effect on January 6, 2020, reduced the DLHS from 40 micrograms per square foot (μg/ft2) to 10 μg/ft2 for floors and from 250 μg/ft2 to 100 μg/ft2 for window sills. EPA did not, however, modify the corresponding post-abatement DLCL at that time. Nonetheless, the 2019 DLHS Rule had the effect of changing the clearance levels that applied to hazard reduction activities under HUD’s Lead Safe Housing Rule (LSHR), which applies to certain pre-1978 HUD-assisted and federally-owned target housing (e.g., supportive housing services, foreclosed HUD-insured single-family housing, and public housing) and which cross-references EPA regulatory provisions. Therefore, for the past year, abatements under HUD’s LSHR were required to be cleared using EPA’s DLHS, while abatements under EPA’s regulations were cleared using the higher 2001 DLCL.

In line with its stated priority of lowering childhood lead exposure and in response to public comments received, EPA decided, through this new rulemaking, to lower the DLCL to match the DLHS for floors and window sills. [Note, since there is no DLHS for window troughs, EPA is not revising the DLCL for window troughs at this time.] This removes the discrepancy between the DLCL and DLHS and mitigates the confusion within the regulated community. Additionally, it remedies the “ethical concerns” raised by commenters with regard to having an inconsistency that could allow certain abatements to be cleared at levels higher than the DLHS.

The final rule will not apply retroactively to post-abatement clearance testing that was conducted using the 2001 DLCL prior to March 8, 2021; however, both EPA- and HUD-regulated entities should ensure that all abatement activities meet the tightened standards in order to avoid penalties or suits, which can include citizen suits. Please contact Clark Hill’s Environment, Energy, and Natural Resources Practice Leaders to learn how to determine whether the new DLCL and 2019 DLHS apply to you, how to select approved contractors for abatement activities, how to maintain the necessary records to demonstrate your compliance, and more.